[Federal Register Volume 76, Number 96 (Wednesday, May 18, 2011)]
[Proposed Rules]
[Pages 28715-28725]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-12236]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 223
[Docket No. 110427267-1267-01]
RIN 0648-BB04
Endangered and Threatened Species: Designation of a Nonessential
Experimental Population for Middle Columbia River Steelhead Above the
Pelton Round Butte Hydroelectric Project in the Deschutes River Basin,
Oregon
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; notice of availability.
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SUMMARY: We, the National Marine Fisheries Service (NMFS), propose to
designate the Middle Columbia River (MCR) steelhead (Oncorhynchus
mykiss), recently reintroduced into the upper Deschutes River basin in
central Oregon, as a nonessential experimental population (NEP) under
the Endangered Species Act (ESA). This NEP designation would expire 12
years after the first generation of adults return to the NEP area. A
draft environmental assessment (EA) has been prepared on this proposed
action and is available for comment (see ADDRESSES and INSTRUCTIONS
section below).
DATES: To allow us adequate time to consider your comments on this
proposed rule, they must be received no later than July 18, 2011. If
you would like to request a public hearing, we must receive your
request in writing, at the address shown in the FOR FURTHER INFORMATION
CONTACT section, by July 5, 2011. Comments on the EA must be received
by July 18, 2011.
ADDRESSES: You may submit comments on the proposed rule by any of the
following methods:
Federal e-Rulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Mail: Submit written comments to Assistant Regional
Administrator, Hydropower Division, Northwest Region, NMFS, 1201 NE
Lloyd Blvd., Suite 1100, Portland, OR 97232.
Fax: (503) 231-2318.
Instructions: All comments received are a part of the public record
and will generally be posted to http://www.regulations.gov without
change. All personal identifying information (e.g., name, address,
etc.) voluntarily submitted by the commenter may be publicly
accessible. Do not submit confidential business information or
otherwise sensitive or protected information. We will accept anonymous
comments (enter N/A in the required fields if you wish to remain
anonymous). Attachments to electronic comments will be accepted in
Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.
You may access a copy of the draft EA by one of the following:
Visit NMFS' Northwest Region Web site at http://www.nwr.noaa.gov.
Call 503.736.4741 and request to have a CD or hard copy
mailed to you.
Obtain a CD or hard copy by visiting NMFS' Portland office
at 1201 NE Lloyd Blvd, Suite 1100, Portland, OR 97232.
You may submit comments on the draft EA by one of the following
methods:
E-mail: [email protected].
Mail: Submit written comments to Hydropower Division, FERC
and Water Diversions Branch, NMFS, 1201 NE. Lloyd Blvd., Portland, OR
97232.
Please see the draft EA for additional information regarding
commenting on that document.
FOR FURTHER INFORMATION CONTACT: Scott Carlon, NMFS, 1201 NE Lloyd
Blvd., Portland, OR 97232 (503-231-2379), or Marta Nammack, NMFS, 1315
East-West Highway, Silver Spring, MD 20910 (301-713-1401).
SUPPLEMENTARY INFORMATION:
Context
On March 25, 1999, NMFS listed the Middle Columbia River (MCR)
steelhead distinct population segment (DPS) as threatened under the
Endangered Species Act (ESA) (16 U.S.C. 1531-1544) (64 FR 14517). The
MCR steelhead DPS range covers approximately 35,000 square miles
(90,650 sq km) of the Columbia plateau of eastern Oregon and eastern
Washington. The Deschutes River in central Oregon is one of six major
river basins supporting steelhead in this DPS. Since 1968, the Pelton
Round Butte Hydroelectric Project (Pelton Round Butte) on the Deschutes
River has blocked steelhead from accessing nearly 200 miles (322 km) of
historical spawning and rearing habitat.
In this rulemaking, we are proposing to designate as an
experimental population the MCR steelhead currently being reintroduced
to the upper Deschutes River basin. This reintroduction is a
requirement of the new hydropower license for the Pelton Round Butte
Hydroelectric Project in
[[Page 28716]]
Oregon, and thus will continue regardless of whether we designate the
steelhead population in the upper Deschutes River basin as
experimental. The licensees, Portland General Electric Company and the
Confederated Tribes of the Warm Springs Reservation of Oregon, are
conducting the reintroduction program in cooperation with the State of
Oregon, NMFS, the U.S. Forest Service, the U.S. Fish and Wildlife
Service, U.S. Bureau of Land Management, Jefferson and Deschutes
Counties, Oregon, and 10 other stakeholder groups. This reintroduction
is one of many recovery actions being implemented by NMFS, Federal and
state agencies, and other partners throughout the threatened species'
historical range. While passage and reintroduction are occurring under
the authority of the Federal Power Act, we would be designating the
reintroduced steelhead as a NEP, and providing special protective
measures for the NEP, under the authority of the ESA. The purpose of
this proposed designation is to temporarily lift certain ESA liability
and consultation requirements to allow time to develop conservation
measures to support the reintroduction effort in the Upper Deschutes
River basin. The conservation measures would benefit from information
gained during the early stages of the reintroduction effort to focus
the conservation measures on the areas needing support.
The specific stock chosen to initiate steelhead reintroduction is
from the Round Butte Hatchery. After the new license was issued in June
2005 and reintroduction planning was largely completed, we included the
Round Butte Hatchery steelhead stock as part of the threatened group of
steelhead (71 FR 834; January 5, 2007).
We are proposing to have the NEP designation set by this action
expire after three successive generations of steelhead have been passed
over Round Butte Dam. Specifically, the NEP designation would expire 12
years after the first generation of adults return to the NEP area. Some
local landowners and one municipality are working to develop a Habitat
Conservation Plan (HCP) for certain activities that may impact
steelhead reintroduced above Round Butte Dam. This HCP is likely to be
completed sooner than the proposed expiration date for the NEP
designation. However, the HCP covers only a subset of the activities
and area impacted by the reintroduction. Thus, other local entities may
consider developing conservation measures to address potential ESA
liability. We expect that the fixed-duration NEP designation will
incentivize local landowners and municipalities to develop such
conservation measures in a timely manner, since full ESA protections
will once again apply to the steelhead after the experimental
population designation expires. In addition, we expect that information
developed during the NEP designation period will help inform
conservation measures, either as they are being developed or through
adaptive management mechanisms.
The proposed NEP would occur in portions of Deschutes, Jefferson,
and Crook Counties, Oregon. The geographic boundaries of the NEP would
extend upstream from Round Butte Dam on the Deschutes River to Big
Falls (river mile 132, or kilometer 212) and all accessible reaches of
its tributary, Whychus Creek; on the Crooked River from its confluence
with the Deschutes River upstream to Bowman Dam (river mile 70, or rkm
113) and all accessible tributaries between these points; and on the
Metolius River from its confluence with the Deschutes River upstream to
all accessible areas. While this area is part of its historical range,
it is outside the current range of the Middle Columbia River steelhead
DPS. The DPS boundary is located at the Reregulating Dam, the furthest
downstream dam of the Pelton Round Butte Hydroelectric Project, on the
Deschutes River downstream of the NEP area.
Section 10(j) of the Endangered Species Act (16 U.S.C.S. 1539(j))
allows the Secretary of Commerce (Secretary) to authorize the release
of an experimental population of an endangered or threatened species
outside the current range of such species if the Secretary determines
that such release will further the conservation of such species. The
Secretary may designate an experimental population when, and at such
times as, the population is wholly separate geographically from
nonexperimental populations. In this action, NMFS proposes to designate
an experimental population that is geographically separate from the
non-experimental ESA-listed MCR steelhead population, due to the dams
that block access for the species to the area where the species is
being reintroduced. The MCR steelhead will only be considered
experimental when they are above the Round Butte Dam. The proposed
designation will further the conservation of the species because it
will build support for the reintroduction effort among local
landowners, incentivize those landowners and municipalities to complete
conservation measures within the set time-period, and ensure that the
conservation measures are informed by information gathered during the
NEP designation, i.e., the first three generations of returning adults.
We will provide notice in the Federal Register when the NEP designation
is set to expire.
Public Comment Procedures
We would like the final rule to be as effective and accurate as
possible, and the final EA to evaluate the potential issues and
reasonable range of alternatives. Therefore, we invite the public,
tribal and government agencies, the scientific community, environmental
groups, industry, local landowners, and all other interested parties to
provide comments on the proposed rule and EA. We request that you keep
your comments relevant to the proposed experimental population
designation, bearing in mind that the reintroduction is required by the
Pelton Round Butte hydropower license. Your comments should be as
specific as possible, provide suggested changes, explain the basis for
them, and include supporting information where appropriate.
Prior to issuing a final rule, we will consider the comments and
supporting materials we receive. The final rule may differ from the
proposed rule based on this information and other considerations.
We are interested in all public comments, and have specific
questions we are interested in hearing public comments on:
(1) Use of a specific expiration date: We chose to state up front
that the designation would expire at a certain time to encourage
completion of conservation measures rather than leaving their
development more open ended. Other experimental population designations
indicate that the designation may be removed for certain reasons, but
do not include a specific expiration date in the designation. Please
comment on the use of an expiration date.
(2) Twelve-year time frame: We propose that the NEP designation
expire 12 years after the first generation of adults return to the NEP
area, in part because useful information will be gained during that
timeframe because this 12-year period should allow three generations of
the reintroduced steelhead to return. Three generations allows for
consideration of variability between generations, including the year-
to-year variability in environmental conditions, so is expected to
provide useful information for developing and tailoring conservation
measures. After this time, we will know where adults are spawning and
young are rearing, and
[[Page 28717]]
whether there are certain needs of the steelhead in specific areas that
can be addressed through conservation measures. If the HCP or other
conservation measures are completed prior to the 12-year expiration,
information from the NEP designation could nevertheless be used to
inform those measures through adaptive management mechanisms.
As indicated, the time limit is also designed to incentivize
completion of conservation measures--both in the HCP and otherwise. For
the HCP, however, a 12-year limit could reduce the incentive to
complete the HCP on its current projected timeframe, which is less than
12 years. Yet, if we used a shorter time-frame, the quality of
information from the NEP would be significantly diminished.
Please comment on the use of 12 years as a fixed time period for
the NEP designation.
(3) The extent to which the experimental population would be
affected by current or future Federal, state, or private actions within
or adjacent to the experimental population area.
(4) Current programs within the experimental population area that
protect fish or aquatic habitats.
(5) Any necessary management restrictions, protective measures, or
other management measures that we have not considered.
Background
The Deschutes River basin above the Pelton Round Butte
Hydroelectric Project was once home to native runs of summer steelhead,
Chinook salmon, sockeye salmon, and Pacific lamprey. Before
hydroelectric and irrigation development, steelhead used the Deschutes
River up to Big Falls, Whychus Creek (a Deschutes River tributary above
the Pelton Round Butte Hydroelectric Project), and the Crooked River
watershed. Within the Crooked River watershed, steelhead were
documented in McKay, Ochoco, Horseheaven, Newsome, Drake, Twelvemile,
and Beaver Creeks, and the North Fork Crooked River (Nehlsen, 1995).
The completion of Ochoco Dam east of Prineville in 1920 blocked
steelhead access into most of the Ochoco Creek watershed, and the
completion of Bowman Dam on the Crooked River in 1961 stopped fish
passage into the upper Crooked River watershed. On the Deschutes River,
the Pelton and Reregulating Dams were completed in 1958. Even though
these dams had fish passage, steelhead numbers in the upper Deschutes
River basin, though still significant, had declined by that time
(Nehlsen, 1995). Available information suggests peak annual escapements
in the 1950s were at least 1,600 adult summer steelhead and 800-900
(Montgomery, 1955) adult spring Chinook salmon (with perhaps twice this
number harvested downstream). After completion of Round Butte Dam (the
most upstream dam) in 1964, fish passage decreased dramatically, and,
by 1968, was abandoned in favor of a hatchery program to mitigate for
lost passage and habitat. The runs could not be sustained primarily
because deceptive surface currents confused smolts attempting to
migrate seaward through Lake Billy Chinook, the project's upper-most
reservoir. Most of the smolts failed to find their way from the head of
the reservoir downstream to a fish collector installed at Round Butte
Dam (Korn et al., 1967). As a result of this decline, and following a
comprehensive study of west coast steelhead, we subsequently listed the
MCR as a DPS (64 FR 14517, March 25, 1999).
There has long been an interest in reestablishing anadromous fish
runs in the upper Deschutes River subbasin. This interest strengthened
in recent years as technological innovations advanced and hydrodynamic
modeling suggested that surface currents could be altered to favor the
downstream passage of smolts. The relicensing of the Pelton Round Butte
Project provided the opportunity to implement these innovations in
order to attempt to reestablish anadromous fish runs upstream.
The Federal Energy Regulatory Commission issued a new license for
the Pelton Round Butte Project (project number P-2030) on June 21,
2005, to Portland General Electric Company (PGE) and the Confederated
Tribes of the Warm Springs Reservation of Oregon (CTWSRO), who are
joint licensees (Licensees). The license requires fish passage over the
Pelton Round Butte Project and incorporates the terms of a Settlement
Agreement entered into by the Licensees and 20 other parties. The
license establishes a Fish Committee, which is made up of the
Licensees, NMFS, Oregon Department of Fish and Wildlife (ODFW), the US
Fish and Wildlife Service (FWS), and other agencies and entities.
Details regarding the responsibilities of the Licensees with respect to
fish passage and reintroduction are in the Fish Passage Plan, included
as Exhibit D to the Settlement Agreement. These responsibilities
include fish passage improvements at the Pelton Round Butte Project, a
wide variety of test and verification studies, and longer term
monitoring efforts. The license includes a schedule for meeting those
obligations.
Because the Pelton Round Butte Hydroelectric Project does not
provide volitional passage, the central element of the Fish Passage
Plan is a Selective Water Withdrawal structure now in place and
operating at Round Butte Dam to improve water quality in the lower
Deschutes River, create currents in the reservoir that should help
guide smolts to an associated fish screening and collection facility,
and provide downstream passage for juveniles. It is currently
envisioned that returning adult steelhead in the experimental
population will be collected below the Reregulating Dam and transported
for release above Round Butte Dam. This new facility will protect fish
in Lake Billy Chinook from being entrained into turbines, and is the
centerpiece of a multi-faceted effort to reestablish runs of steelhead
that have been absent from the upper basin for more than 42 years.
Recognizing the fish reintroduction opportunity, the Oregon Fish and
Wildlife Commission adopted Oregon Administrative Rules in December
2003 that direct ODFW to restore anadromous fish, including MCR summer
steelhead, into portions of their historical range upstream from the
Pelton Round Butte Project. Specific areas targeted for reintroduction
include the Deschutes River from Round Butte Dam upstream to Big Falls,
Whychus Creek, and the Crooked River and tributaries upstream to Bowman
and Ochoco Dams. The Metolius River was not targeted for steelhead
reintroduction as it is believed that this subbasin is better suited to
resident steelhead (i.e., rainbow trout or redband trout).
Individuals that are used to establish an experimental population
may come from a donor population, provided their removal will not
create adverse impacts upon the parent population, and provided
appropriate permits are issued in accordance with our regulations (50
CFR 222.301) prior to removal. In this case, the donor steelhead are
from a captive bred population, which is propagated to mitigate for
lost fisheries due to failed fish passage after the Pelton Round Butte
Project was originally constructed. The hatchery fish being used for
the reintroduction are excess stock. In addition, it is possible that
some wild adult stock could also be released into the NEP area before
the designation expires.
Statutory and Regulatory Framework
Congress made significant changes to the ESA in 1982, including the
addition
[[Page 28718]]
of section 10(j), which provides for the designation of reintroduced
populations of listed species as ``experimental populations.''
Previously, we had authority to reintroduce populations into unoccupied
portions of a listed species' historical range. However, local citizens
often opposed these reintroductions because they were concerned about
potential liability for harming these animals, and the placement of
restrictions and prohibitions on Federal and private activities. Under
section 10(j) of the ESA, the Secretary can authorize the release of an
``experimental'' population outside the species' current range, but
within its historical range, where: (1) The experimental population is
geographically separate from the non-experimental population; and (2)
the designation will further the conservation of the listed species.
The determination of whether experimental populations are ``essential''
or ``nonessential'' to the continued existence of the species must be
based on the best scientific and commercial data available.
The ESA provides that species listed as endangered or threatened
are afforded protection primarily through the prohibitions of section 9
and the consultation requirements of section 7. Section 9 of the ESA
prohibits the take of an endangered species. The term ``take'' is
defined by the ESA as ``to harass, harm, pursue, hunt, shoot, wound,
trap, capture, or collect, or attempt to engage in any such conduct.''
15 U.S.C. 1532(19). Section 7 of the ESA provides procedures for
Federal interagency cooperation and consultation to conserve federally
listed species, ensure the survival and help in recovery of these
species, and to protect designated critical habitat necessary for the
listed species' survival. It also mandates that all Federal agencies
determine how to use their existing authorities to further the purposes
of the ESA to aid in recovering listed species. It also states that
Federal agencies will, in consultation with NMFS, ensure that any
action they authorize, fund, or carry out is not likely to jeopardize
the continued existence of a listed species, or result in the
destruction or adverse modification of designated critical habitat.
Section 7 of the ESA does not apply to activities undertaken on private
land unless they are authorized, funded, or carried out by a Federal
agency.
For the purposes of section 7 of the ESA, section 10(j) requires
that we treat NEPs as a species proposed to be listed, unless they are
located within a National Wildlife Refuge or National Park, in which
case they are treated as threatened, and section 7 consultation
requirements apply. When NEPs are located outside a National Wildlife
Refuge or National Park, only two provisions of section 7 apply--
section 7(a)(1) and section 7(a)(4). In these instances, NEP
designations provide additional flexibility in developing conservation
and management measures, because they allow NMFS to work with the
action agency early to develop conservation measures, instead of
analyzing an already well-developed proposed action provided by the
agency in the framework of a section 7(a)(2) consultation.
Additionally, for populations of listed species that are designated as
nonessential, section 7(a)(4) of the ESA only requires that other
agencies confer (rather than consult) with NMFS on actions that are
likely to jeopardize the continued existence of a species proposed to
be listed. These conferences are advisory in nature, and their findings
do not restrict agencies from carrying out, funding, or authorizing
activities.
Section 10(j) of the ESA (16 U.S.C. 1539(j)) also provides the
Secretary of Commerce with authority to designate populations of listed
species as experimental, and includes criteria for the designation.
Experimental population designations must be done through a rulemaking
that identifies the population, and state whether the population is
essential or nonessential to the continued existence of the species.
For purposes of section 9 of the ESA, a population designated as
experimental is treated as threatened regardless of the species'
designation elsewhere in its range. Through section 4(d) of the ESA, a
threatened designation allows the Services greater discretion in
devising management programs and special regulations for such a
population. Section 4(d) of the ESA allows us to adopt regulations
necessary to provide for the conservation of a threatened species. MCR
steelhead are currently included in NMFS' 4(d) rule that imposes
section 9 take liability for threatened anadromous fish, at 50 CFR 203.
Through this rulemaking, we propose to use our authority under section
4(d) to create a different set of protective regulations, specific to
the experimental steelhead population above Round Butte Dam. In effect,
we would be modifying the current 4(d) rule as it applies to MCR
steelhead. For this nonessential experimental population only, we would
allow take if the take is incidental to a lawful activity, such as
agricultural activities.
The FWS has regulations for experimental population designation, 50
CFR 17 subpart H, that provide definitions, considerations in finding
that the designation would further the conservation of the species, and
information to be included in the designation. These regulations state
that, in making the determination that the designation would further
the conservation of the species, the Secretary must consider the effect
of taking the eggs or young from another population, the likelihood
that the experimental population will become established, the effect
the designation would have on the species' overall recovery, and the
extent to which the experimental population would be affected by
activities in the area. A regulation designating the experimental
population must include: A clear means to identify the experimental
population; a finding based on the best available science indicating
whether the population is essential to the continued existence of the
species; management restrictions, protective measures, or other
management concerns; and a periodic review of the success of the
release and its effect on the conservation and recovery of the species.
The FWS regulations also state that any experimental population shall
be treated as threatened for purposes of establishing protective
regulations under ESA section 4(d), and the protective regulations for
the experimental population will contain applicable prohibitions and
exceptions for that population.
While we do not have regulations regarding designation of
experimental populations, many of the considerations in FWS's
regulation are generally applicable to this designation. Where
applicable, we will include the same considerations in our decision
regarding designation, and provide that rationale in the preamble.
These considerations are in addition to the statutory requirements that
are also explained in the preamble.
Biological Information
``Steelhead'' is the name commonly applied to the anadromous
(migratory) form of the biological species O. mykiss. The common names
of the non-anadromous, or resident, form are rainbow trout and redband
trout. The species O. mykiss exhibits perhaps the most complex suite of
life history traits of any species of Pacific salmonid. These fish can
be anadromous or freshwater residents, and under some circumstances
yield offspring of the opposite form. Steelhead can spawn more than
once, whereas all other Oncorhynchus except cutthroat trout (O. clarki)
spawn once and then die.
[[Page 28719]]
When we originally listed the MCR steelhead as threatened on March
25, 1999 (64 FR 14517), it was classified as an evolutionarily
significant unit (ESU) of salmonids that included both the anadromous
and resident forms, but not hatchery fish. Since then, we revised our
species determinations for West Coast steelhead under the ESA,
delineating anadromous, steelhead-only distinct population segments
(DPS). We listed the MCR steelhead DPS as threatened on January 5, 2006
(71 FR 834). Rainbow trout and redband trout are not listed under the
ESA, and are under the jurisdiction of the states unless they are
listed, when they come under the jurisdiction of the FWS. We published
a final Critical Habitat designation for MCR steelhead on September 2,
2005, with an effective date of January 2, 2006 (70 FR 52630).
As noted previously, the MCR steelhead DPS extends over an area of
about 35,000 square miles (90,650 square km) in the Columbia plateau of
eastern Washington and eastern Oregon. The DPS includes all naturally
spawned populations of steelhead in drainages upstream of the Wind
River, Washington, and the Hood River, Oregon (exclusive), up to, and
including, the Yakima River, Washington, excluding steelhead from the
Snake River Basin (64 FR 14517, March 24, 1999; 71 FR 834, January 5,
2006). Major drainages that support steelhead in this DPS are the
Deschutes, John Day, Umatilla, Walla Walla, Yakima, and Klickitat river
systems. Most of the region is privately owned (64 percent), with the
remaining area under Federal (23 percent), tribal (10 percent), and
state (3 percent) ownership. Most of the landscape consists of
rangeland and timberland, with significant concentrations of dryland
agriculture in parts of the range. Irrigated agriculture and urban
development are generally concentrated in valley bottoms. Human
populations in these regions are growing.
Steelhead produced in seven artificial propagation programs are
considered part of the DPS, and were given a listing status of
threatened in 2006 (71 FR 834, January 5, 2006). These programs are the
Touchet River Endemic Summer Steelhead Program, the Yakima River Kelt
Reconditioning Program (in Satus Creek, Toppenish Creek, Naches River,
and Upper Yakima River), and the Umatilla River and Deschutes River
steelhead hatchery programs.
Within the range of West Coast steelhead, spawning migrations occur
throughout the year, with seasonal peaks of activity. The runs are
usually named for the season in which the peak occurs. Most steelhead
can be categorized as one of two run types, based on their sexual
maturity when they re-enter freshwater and how far they go to spawn. In
the Pacific Northwest, summer steelhead enter freshwater between May
and October, and require several months to mature before spawning;
winter steelhead enter freshwater between November and April with well-
developed gonads and spawn shortly thereafter. Summer steelhead usually
spawn farther upstream than winter steelhead (Withler, 1966; Roelofs,
1983; Behnke, 1992).
The steelhead that occur in the Deschutes Basin are summer run.
Spawning occurs from late winter through spring, and juveniles
typically rear in freshwater for 2 years (may range 1-4 years) before
migrating to the Pacific Ocean. About half of the adults return after 1
year in the ocean and the other half returns after 2 years.
Throughout much of its historical range, the decline of steelhead
has been attributed to habitat degradation and fragmentation, the
blockage of migratory corridors, poor water quality, angler harvest,
entrainment (the incidental withdrawal of fish and other aquatic
organisms in water diverted out-of-stream for various purposes) into
diversion channels and dams, and introduced nonnative species. Specific
land and water management activities that may negatively impact
steelhead populations and habitat, if not implemented in accordance
with best management practices, include the operation of dams and other
diversion structures, forest management practices, livestock grazing,
agriculture, agricultural diversions, road construction and
maintenance, mining, and urban and rural development.
Factors Affecting Listing Middle Columbia River Steelhead as Threatened
Section 4(a)(1) of the ESA and NMFS implementing regulations (50
CFR part 424) establish procedures for listing species as threatened or
endangered. According to this direction, the Secretary must determine
if a species is endangered or threatened based on any one or a
combination of the following factors: (1) The present or threatened
destruction, modification, or curtailment of its habitat or range; (2)
overutilization for commercial, recreational, scientific, or
educational purposes; (3) disease or predation; (4) inadequacy of
existing regulatory mechanisms; or (5) other natural or human-made
factors affecting its continued existence (Busby et al., 1996; NMFS,
1999).
In our initial determination to list the MCR steelhead species, we
found that all five section 4(a)(1) factors had played a role in the
decline of the West Coast salmon and steelhead ESUs. These factors may
or may not still be limiting recovery in the future when we reevaluate
the status of the species to determine whether the protections of the
ESA are no longer warranted and the species may be delisted. Findings
leading to the listing of West Coast salmon and steelhead, including
MCR steelhead, include:
(1) The present or threatened destruction, modification, or
curtailment of its habitat or range: Salmon and steelhead have
experienced declines in abundance over the past several decades as a
result of loss, damage, or change to their natural environment.
Water diversions, forestry, agriculture, mining, and urbanization
have eliminated, degraded, simplified, and fragmented habitat.
Hydroelectric development on the mainstem Columbia River modified
natural flow regimes and impaired fish passage. Tributary
obstructions also restrict or block salmon and steelhead access to
historical habitats.
(2) Overutilization of the steelhead and salmon for commercial,
recreational, scientific, or educational purposes: Overfishing in
the early days of European settlement led to the depletion of many
salmonid stocks before extensive modifications and degradation of
natural habitats, and exploitation rates following the degradation
of many aquatic and riparian ecosystems were higher than many
populations could sustain. Today, steelhead harvest continues on the
Columbia River, tributaries, and Pacific Ocean; however, fishery
impacts have declined significantly because of changes in fishery
management.
(3) Disease or predation: Introductions of non-native species
and habitat modifications have resulted in increased predator
populations in numerous rivers. Predators on adult and juvenile
steelhead include seabirds, such as Caspian terns, walleye and
California sea lions.
(4) Inadequacy of existing regulatory mechanisms: Various
Federal, state, county, and tribal regulatory mechanisms are in
place to reduce habitat loss and degradation caused by human use and
development. Many of these mechanisms have been improved over the
years to slow the habitat degradation and destruction. Protective
efforts directed toward addressing the many factors that adversely
impact MCR steelhead and habitat--water quality and quantity, safe
migration, riparian vegetation, food, predation dynamics and complex
stream channels, and floodplain connectivity--will aid in improving
these factors.
(5) Other natural or human-made factors affecting its continued
existence: Variability in ocean and freshwater conditions can have
profound impacts on the productivity of salmonid populations and, at
different times, have exacerbated or mitigated the problems
associated with degraded and altered riverine and estuarine
habitats.
[[Page 28720]]
Relationship of the Proposed Experimental Population to Recovery
Efforts
The 2009 Middle Columbia River Steelhead Recovery Plan has the
overarching aim of removing the steelhead DPS from the threatened and
endangered species list. The suite of strategies and actions proposed
in the Plan will protect and improve ecosystem functions and restore
normative ecological processes to levels that support recovery of MCR
steelhead populations. The strategies and actions were developed by
planning teams comprised of natural resource specialists for the
Fifteenmile, Deschutes, John Day, Umatilla, and Walla Walla watersheds.
The actions reflect direction identified in regional and local plans,
recent modeling and research findings, and local expert input provided
by the planning team members. Together, these strategies and actions
call for maintaining high quality habitats and their productive
capacity, improving ecosystem processes and habitats that are impaired
but are currently important to productive capacity, and restoring
habitat through passive and active measures.
Recovery criteria specific to the Deschutes include eight kinds of
tributary habitat conservation measures that could mitigate for adverse
impacts. We organized the habitat actions and associated information
for each population by the conservation measures, or habitat
strategies:
(1) Protect and conserve natural ecological functions that support
the viability of populations and their primary life history strategies
throughout their life cycle;
(2) Restore passage and connectivity to habitats blocked or
impaired by artificial barriers and maintain properly functioning
passage and connectivity;
(3) Maintain and restore floodplain connectivity and function;
(4) Restore degraded and maintain properly functioning channel
structure and complexity;
(5) Restore riparian condition and large woody debris recruitment
and maintain properly functioning conditions;
(6) Restore natural hydrograph to provide sufficient flow during
critical periods;
(7) Improve degraded water quality and maintain unimpaired water
quality; and
(8) Restore degraded and maintain properly functioning upland
processes to minimize unnatural rates of erosion and runoff.
The recovery scenario described in the MCR steelhead recovery plan
(NMFS, 2009) states that the Deschutes Eastside and Westside
populations should reach a viable status. The Westside population
existed historically in Whychus Creek and the upper Deschutes River
below Big Falls. The Eastside population, as determined by the Interior
Columbia Technical Recovery Team, did not extend above Pelton Round
Butte historically. The Plan recognizes that successful reintroduction
of MCR steelhead and their natural production above the Pelton Round
Butte Project could contribute substantially to recovery in two ways,
by: (1) restoring production from the Whychus Creek drainage, part of
the historical Westside Deschutes population that currently is limited
to major tributaries below the Pelton Round Butte Project; and (2)
reestablishing production in the Crooked River drainage, identified by
the Interior Columbia Technical Recovery Team as a separate extirpated
historical population. If successful, these reintroductions and
restoration of natural production could contribute substantially to
population status and therefore to the viability of the MCR steelhead
DPS.
The MCR steelhead recovery plan also includes an ambitious
restoration and protection program for currently accessible habitats in
tributaries below the Pelton Round Butte Project. As a result, it is
possible that the Westside Deschutes population could reach minimum
viability levels without access to habitat above the Pelton Round Butte
Project if there is an increase in actions aimed at further improving
natural production from accessible habitats below the project.
Furthermore, the Mid-Columbia Recovery Plan recognizes that a future
delisting decision for the DPS should consider not only the specific
biological criteria incorporated into the current plan, but also the
general principles underlying those criteria, advances in risk
assessment, management actions in place to address threats, and
considerations for the status of all of the components in the DPS.
Therefore, while the reintroduction program furthers recovery, it is
one of many measures to assist achieving this goal.
Does the proposed designation further the conservation of the species?
Under ESA section 10(j), the Secretary may designate listed species
as experimental if doing so furthers the conservation of the species.
The proposed designation of MCR steelhead is expected to promote
development of conservation measures well-tailored to supporting
reintroduction because we will have 12 years, or three steelhead
generations, of data to use as the foundation for conservation
measures. Three generations should account for the variable
environmental conditions (both ocean and freshwater) the NEP will
experience and give a solid basis for knowing what kinds of
conservation measures will provide strong support for the
reintroduction effort. For example, once we know the main spawning
areas after collecting this information from three generations of
spawning adults, we can craft conservation measures to protect those
areas. Conservation measures that are completed before the expiration
date likely would include an adaptive management component that would
allow us to modify these measures based on this information. In
addition, the expiration date adds another conservation aspect to the
designation by encouraging development and completion of the
conservation measures before expiration of the NEP designation
(although with respect to the HCP it may create a disincentive for
completing the HCP on its current trajectory, which is less than 12
years).
We weighed these benefits against any potential harm caused by this
designation. There is potential harm associated with the reduced
section 9 protections during the time period of the designation.
However, we do not expect changes to current conditions to
significantly increase harm to steelhead during the NEP period. In
weighing the benefits of developing sound conservation measures in a
time certain versus the potential for roughly the same amount of loss
as there is now, the benefits of developing and implementing the
conservation measures outweigh the loss of some individual fish.
Therefore, on balance, the designation of the population as
experimental would further the conservation of the species.
Is the proposed experimental population essential or nonessential?
Under ESA section 10(j)(2)(B), the Secretary must ``identify the
[proposed] population and determine, on the basis of the best available
information, whether or not such population is essential to the
continued existence of an endangered species or a threatened species.''
15 U.S.C. 1539(j)(2)(B). First, we considered the importance of the
experimental population to recovery of MCR steelhead generally. While
the reintroduction effort is a significant recovery effort, it is not
the only one and not the key to whether recovery can be achieved for
this steelhead DPS. Successful implementation of
[[Page 28721]]
restoration efforts across all major population groups in the DPS could
reduce risks and improve viability even absent reintroduction above
Pelton Round Butte Dam.
Another factor we considered is that the steelhead used for this
reintroduction effort will be surplus hatchery stock. The hatchery
program exists to mitigate for lost MCR steelhead upstream habitat, but
the steelhead used in the reintroduction program are excess hatchery
fish and are beyond what is needed for the mitigation. Furthermore, MCR
steelhead have a very wide range in the Columbia Plateau, and are found
in numerous rivers. The potential loss of some of the excess hatchery
fish being used for the reintroduction effort will not appreciably
reduce the likelihood of survival and recovery for this DPS. Therefore,
this experimental population will be designated as nonessential because
there are sufficient numbers of other fish from this population
throughout a wide geographic range, and these fish are excess hatchery
stock that are not needed for other purposes.
Location of Proposed NEP
ESA section 10(j) requires that the experimental population be
designated only when, and at such times, as it is geographically
separate from nonexperimental populations of the same species. On a
very basic level, the NEP geographic area includes all waters that
could support steelhead above Round Butte Dam. The NEP area covered by
this action would include portions of the Deschutes River basin above
Round Butte Dam, which is the most upstream development of the three-
dam Pelton Round Butte Hydroelectric Project. Specifically, the NEP
area includes the Deschutes River from Big Falls (river mile 132 or
river kilometer 212) downstream to Round Butte Dam; the Whychus Creek
subbasin; the Metolius River subbasin; and the Crooked River subbasin
from Bowman Dam downstream (including the Ochoco and McKay Creek
watersheds) to its point of confluence with the Deschutes River.
Accordingly, Round Butte Dam serves as the line of demarcation
between the experimental population and the rest of the steelhead
population. This geographic boundary is clearly defined by the presence
of Round Butte Dam, with all steelhead above the dam being part of the
experimental population and all steelhead below the dam not part of the
experimental population. This approach to providing a clear geographic
separation recognizes that anadromous fish migrate and mingle during
the migration. The steelhead will be experimental when, and at such
times as, they are above Round Butte Dam, and not experimental when
they are downstream of the dam.
The nearest steelhead population to the NEP area is found in the
Deschutes River below Round Butte Dam. The geographic boundary of the
current steelhead DPS does not include the area above Round Butte Dam.
Other steelhead populations near the NEP area include fish in the
following tributaries of the lower Columbia River: The Lewis River,
entering the lower Columbia at river mile (RM) 84 (river km 135), the
Willamette River at RM 101(river km 163), and the Hood River at RM 165
(river km 366). Because anadromous populations of steelhead migrate to
the Pacific Ocean and return to their natal streams to spawn,
experimental population fish will commingle with nonexperimental
population fish in the lower Deschutes and Columbia Rivers, and
individuals from the experimental population may stray into any of the
lower Columbia River tributaries or into Deschutes River tributaries
below the Pelton Round Butte Project and spawn. Steelhead found outside
of the NEP boundary but known to be part of the hatchery stock used for
the reintroduction will also be considered nonexperimental.
The Round Butte Dam provides an absolute boundary to
nonexperimental population fish returning to spawn. All juvenile
steelhead smolts leaving the NEP boundary are collected at Round Butte
Dam and each fish is given the same unique mark so that when they
return to the Pelton fish trap as adults, trap operators can readily
distinguish between experimental population and nonexperimental
population fish. Only adult steelhead from the experimental population
will be released above Round Butte Dam; therefore, the NEP is
geographically separate from other steelhead populations because of the
Pelton Round Butte Project.
Lastly, the steelhead reintroduction plan calls for using wild
spawners from lower Deschutes River tributaries at some point in the
reintroduction effort. Use of non-hatchery fish in the reintroduction
will largely depend on the availability of wild spawners and the
successful performance of the fish passage program at the Pelton Round
Butte Project. We will consider any non-hatchery steelhead used for
reintroduction above Round Butte Dam to be part of the experimental
population once released into the NEP area.
In summary, the section 10(j) requirement that the experimental
designation be limited to such times as the population is
geographically separate is met here because the NEP area is outside the
range of the currently existing DPS, and is clearly defined by Round
Butte Dam, which is impassable to steelhead. It includes all streams
above Round Butte Dam capable of supporting steelhead. All steelhead
above the dam are in the experimental population, and all steelhead
below the dam are not part of the experimental population.
Time Frame for NEP Designation
We are proposing an expiration date for the NEP designation because
we want to provide an incentive for private land owners and local
government entities to complete conservation measures in a certain time
frame, while providing time to gather useful information on the
reintroduction effort. This information will be used in the development
of the conservation measures so they will be able to support the
reintroduction program.
We are proposing a time frame of 12 years from the time when the
first NEP adults return to the NEP area. This time is not definite now
because we do not yet know exactly when the first adult steelhead will
be passed above the dams to the NEP area. Adult passage will depend on
meeting criteria established in the steelhead and spring Chinook
Reintroduction Plan (ODFW and CTWSRO, 2008). On average, one generation
of steelhead is about 4 years (2 years freshwater rearing, 1 year in
the ocean, and roughly 9-11 months for adult migration, holding, and
spawning), so three generations will be 12 years. We recognize that
variations in freshwater rearing and ocean growth will occur (i.e.,
longer freshwater rearing and ocean growth time).
The proposed timeframe reflects our view that it will be useful to
have information on three generations of steelhead to understand how
well the reintroduction program is working and how best to craft
conservation measures to support the program. As we discussed in the
section on whether the designation will further the conservation of the
species, the time frame of three generations allows an adequate amount
of data to be collected on the reintroduction program, and time for
this information to be used as the basis of conservation measures
tailored toward supporting this reintroduction. This amount of
information will allow all parties, private and governmental, to work
together to develop conservation measures that are specifically focused
on addressing needs of steelhead in the Upper Deschutes River basin.
For conservation measures completed before
[[Page 28722]]
expiration of the designation, such as potentially the HCP currently
being developed, an adaptive management component could address the
need to potentially modify the measures based on this information. This
component will maximize the benefit of the conservation measures and
strengthen the reintroduction program, and will result in a strong
program for this recovery measure.
Without an expiration date, development and completion of
conservation measures may continue for a longer time. In general,
twelve years is a reasonable amount of time to complete development of
conservation measures because there is still a lot of information
needed, and the issues are complex and involve many parties. That said,
the HCP could be completed before the NEP designation expires. We would
like to strongly encourage development and implementation of
conservation measures that will support the reintroduction, and this
expiration date is meant to provide that encouragement while also
ensuring that the measures are based on good information.
Management Considerations and Protective Measures
The aquatic resources in the NEP area are managed by the U.S.
Forest Service, Bureau of Land Management, Bureau of Reclamation, the
State of Oregon, municipalities, and private landowners. Multiple-use
management of these waters would continue under the NEP designation. We
do not expect that continuing these agricultural, recreational,
municipal, and other activities by private landowners within and near
the NEP area will cause significant harm to MCR steelhead; the
reintroduction effort has begun and the juvenile survival rates suggest
that the activities in the area are not a limiting factor. The main
factors we relied on in considering appropriate management measures
are: (1) A significant number of upstream irrigators are developing or
already implementing certain conservation measures; (2) Federal
agencies have already consulted under section 7 of the ESA and are
implementing actions that do not cause jeopardy and minimize incidental
take; (3) fish used for the reintroduction will be excess hatchery
fish, and loss of some of them will not harm survival and recovery of
the steelhead; and (4) enough steelhead are already surviving to
provide information necessary for the initial stages of the
reintroduction program. These factors all lead to the conclusion that,
for a 12-year period, the reintroduction effort can continue
successfully while allowing some take of the steelhead in the
experimental population because enough fish will survive to support
reintroduction. Therefore, for the time period of the designation,
incidental take, as provided in the next paragraph, will not harm the
recovery program.
Incidental Take: Although MCR steelhead are already covered by a
NMFS 4(d) rule at 50 CFR 203, this action would modify that protection
if it is implemented. In this proposed rule, under the authority of ESA
section 4(d), incidental take of steelhead within the experimental
population area would be allowed, provided that the take is
unintentional, not due to negligent conduct, or is consistent with
State fishing regulations that have been coordinated with NMFS. As
recreational fishing for species other than steelhead is popular within
the NEP area, we expect some incidental take of steelhead from this
activity but, as long as it is incidental to the recreational fishery,
and in compliance with ODFW fishing regulations and Tribal regulations
on land managed by the Confederated Tribes of the Warm Springs
Reservation of Oregon, such take will not be a violation of the ESA.
Monitoring and Evaluation
As a requirement under its Federal license to operate the Pelton
Round Butte Project, the Licensees will monitor over the 50-year term
of the license. Some of this monitoring relates directly to the MCR
steelhead reintroduction program. The licensees will collect data to
gauge long-term progress of the reintroduction program and to provide
information for decision-making and adaptive management for directing
the reintroduction program. Fish passage, fish biology, aquatic
habitat, and hatchery operations will be the primary focus of the
monitoring (PGE and CTWSRO, 2004; ODFW and CTWSRO, 2008).
Fish passage monitoring will focus on addressing a variety of
issues important to successful reintroduction. These issues consist of
measuring fish passage efficiency, including smolt reservoir passage,
collection efficiency at the fish collection facility, smolt injury and
mortality rates, adult collection, and adult reservoir passage to
spawning areas. Passive integrated transponder tags and radio tags will
be used to evaluate and monitor fish passage effectiveness. Biological
evaluation and monitoring will concentrate on adult escapement and
spawning success, competition with resident species, predation, disease
transfer, smolt production, harvest, and sustainability of natural
runs. Habitat monitoring will focus on long-term trends in the
productive capacity of the reintroduction area (e.g., habitat
availability, habitat effectiveness, riparian condition) and natural
production (the number, size, productivity, and life history diversity)
of steelhead in the NEP area above Round Butte Dam.
Monitoring at the fish hatchery will focus on multiple issues
important to the quality of fish collected and produced for use in the
reintroduction program. ODFW will be primarily responsible for
monitoring hatchery operations. This will consist mainly of broodstock
selection; disease history and treatment; pre-release performance such
as survival, growth, and fish health by life stage; the numerical
production advantage provided by the hatchery program relative to
natural production; and success of the hatchery program in meeting
conservation program objectives.
While this monitoring is being conducted for purposes of making the
reintroduction effort successful, we will use the information to also
determine if the experimental population designation is causing any
harm to MCR steelhead and their habitat, and then, based on this and
other available information, determine if the designation needs to be
removed before the expiration date. There is no need for additional
monitoring because this effort will provide all the information
necessary.
Findings
Based on the best available scientific information, the designation
of MCR steelhead above the Pelton Round Butte Project as a NEP will
further the conservation of the species because it will encourage
private landowners and all levels of government to work together to
develop conservation measures, which in turn will support recovery
efforts. The geographic area is well-defined as all parts of the three
rivers capable of supporting steelhead above the Pelton Round Butte
dams. This population is nonessential because it is made up of excess
hatchery stock that are not necessary for the survival and recovery of
the species, and because there are sufficient MCR steelhead populations
elsewhere such that this NEP is not essential to the DPS. The
expiration date for the designation is appropriate because it will
encourage completion of conservation measures based on site-specific
scientific information, within the time frame provided in the rule.
[[Page 28723]]
Information Quality Act and Peer Review
In December 2004, the Office of Management and Budget (OMB) issued
a Final Information Quality Bulletin for Peer Review pursuant to the
Information Quality Act (Section 515 of Pub. L. 106-554). The Bulletin
was published in the Federal Register on January 14, 2005 (70 FR 2664).
The Bulletin established minimum peer review standards, a transparent
process for public disclosure of peer review planning, and
opportunities for public participation with regard to certain types of
information disseminated by the Federal Government. The peer review
requirements of the OMB Bulletin apply to influential or highly
influential scientific information disseminated on or after June 16,
2005. There are no documents supporting this proposed rule that meet
this criteria.
Classification
Regulatory Planning and Review (E.O. 12866)
In accordance with the criteria in E.O. 12866, OMB has determined
this proposed rule is not a significant rulemaking action.
If enacted, this proposed rule would not create inconsistencies
with other agencies' actions or otherwise interfere with an action
taken or planned by another agency. Federal agencies most interested in
this rulemaking are the U.S. Forest Service, Bureau of Land Management,
and Bureau of Reclamation. Because of the substantial regulatory relief
provided by the NEP designation, we believe the reestablishment of
steelhead in the areas described would not conflict with existing human
activities or hinder public utilization of the area.
This proposed rule also would not materially affect entitlements,
grants, user fees, or loan programs, or the rights and obligations of
their recipients. Because there are no expected impacts or restrictions
to existing human uses as a result of this proposed rule, no
entitlements, grants, user fees, loan programs, or the rights and
obligations of their recipients are expected to occur.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (as amended by the Small
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C.
801 et seq.), whenever a Federal agency is required to publish a notice
of rulemaking for any proposed or final rule, it must prepare, and make
available for public comment, a regulatory flexibility analysis that
describes the effect of the rule on small entities (i.e., small
businesses, small organizations, and small government jurisdictions).
However, no regulatory flexibility analysis is required if the head of
an agency certifies that the rule will not have a significant economic
impact on a substantial number of small entities. The SBREFA amended
the Regulatory Flexibility Act to require Federal agencies to provide a
statement of the factual basis for certifying that a rule will not have
a significant economic impact on a substantial number of small
entities. The Chief Counsel for Regulation certifies that this proposed
rule would not have a significant economic effect on a substantial
number of small entities.
If this proposal is adopted, the small businesses in the upper
Deschutes River basin that could be affected include those involved in
agriculture, ranching, fishing, recreation and tourism, because their
activities have the potential to affect steelhead and their habitat.
The proposed rule would likely be beneficial to the small entities
listed here, however, and there will likely be no adverse economic
impact on these entities, because the rule would relieve a restriction
on these small businesses by removing potential ESA liability for them
during the time frame of the NEP designation.
Section 7(a)(4) requires Federal agencies to confer (rather than
consult) with us on actions that are likely to jeopardize the continued
existence of a proposed species. The results of a conference are
advisory in nature and do not restrict agencies from carrying out,
funding, or authorizing activities. The proposed rule would relieve a
restriction on Federal actions by removing the ESA section 7(a)(2)
consultation requirement for Federal action agencies. The designation
of steelhead as an experimental population within the upper Deschutes
River basin would likely not affect the use of Federal lands because
there would be no requirement to consult under ESA section 7(a)(2) to
make a jeopardy or adverse modification determination.
This proposed rule will relieve an ESA regulatory restriction and
will not impose any new or additional economic or regulatory
restrictions upon States, non-Federal entities, or members of the
public due to the presence of steelhead. Therefore, this rulemaking
will have no significant economic impact on a substantial number of
small entities because it is not expected to have any significant
adverse impacts to recreation, agriculture, or any development
activities, and may have a beneficial effect on small entities. For
these reasons, an initial regulatory flexibility analysis is not
required, and none has been prepared.
Takings (E.O. 12630)
In accordance with E.O. 12630, the proposed rule does not have
significant takings implications. A takings implication assessment is
not required because this proposed rule: (1) Would not effectively
compel a property owner to have the government physically invade their
property, and (2) would not deny all economically beneficial or
productive use of the land or aquatic resources. This proposed rule
would substantially advance a legitimate government interest
(conservation and recovery of a listed fish species) and would not
present a barrier to all reasonable and expected beneficial use of
private property.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
OMB regulations at 5 CFR 1320, which implement provisions of the
Paperwork Reduction Act (44 U.S.C. 3501 et seq.), require that Federal
agencies obtain approval from OMB before collecting information from
the public. A Federal agency may not conduct or sponsor, and a person
is not required to respond to, a collection of information unless it
displays a currently valid OMB control number. This proposed rule does
not include any new collections of information that require approval by
OMB under the Paperwork Reduction Act.
National Environmental Policy Act
In compliance with all provisions of the National Environmental
Policy Act of 1969 (NEPA), we have analyzed the impact on the human
environment and considered a reasonable range of alternatives for this
proposed rule. We have prepared a draft EA on this proposed action and
have made it available for public inspection (see ADDRESSES section).
All appropriate NEPA documents will be finalized before this rule is
finalized.
Government-to-Government Relationship With Tribes
E.O. 13175, Consultation and Coordination with Indian Tribal
Governments, outlines the responsibilities of the Federal Government in
matters affecting tribal interests. If we issue a regulation with
tribal implications (defined as having a substantial direct effect on
one or more Indian tribes, on the relationship between the Federal
Government and Indian tribes, or on the distribution of
[[Page 28724]]
power and responsibilities between the Federal Government and Indian
tribes), we must consult with those governments, or the Federal
Government must provide funds necessary to pay direct compliance costs
incurred by tribal governments.
About 28 percent of the acreage included in the NEP area is owned
and managed by the CTWSRO. We have invited (letter dated September 21,
2010, from William Stelle, Regional Administrator, NMFS, to Stanley
Smith, Chairman, CTWSRO) the CTWSRO to discuss the proposed rule at its
convenience should it choose to have a government-to-government
consultation. To date, NMFS has not received a request for formal
government to government consultation. Additionally, the CTWSRO is
involved in the reintroduction as one of the licensees and as a member
of the fish committee that is involved in the reintroduction program.
Energy Supply, Distribution, or Use (E.O. 13211)
On May 18, 2001, the President issued E.O. 13211 on regulations
that significantly affect energy supply, distribution, and use. E.O.
13211 requires agencies to prepare Statements of Energy Effects when
undertaking any action that promulgates or is expected to lead to the
promulgation of a final rule or regulation that (1) is a significant
regulatory action under E.O. 12866 and (2) is likely to have a
significant adverse effect on the supply, distribution, or use of
energy.
This proposed rule is not expected to significantly affect energy
supplies, distribution, and use. Therefore, this action is not a
significant energy action and no Statement of Energy Effects is
required.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in the ADDRESSES section. To
better help us revise the proposed rule, your comments should be as
specific as possible. For example, you should tell us the numbers of
the sections or paragraphs that are unclearly written, which sections
or sentences are too long, the sections where you feel lists or tables
would be useful, etc.
References Cited
A complete list of all references cited in this proposed rule is
available upon request from National Marine Fisheries Service office
(see FOR FURTHER INFORMATION CONTACT).
List of Subjects in 50 CFR Part 223
Endangered and threatened species, Exports, Imports.
Dated: May 11, 2011.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine
Fisheries Service.
For the reasons set out in the preamble, we propose to amend part
223, subpart B of chapter 1, title 50 of the Code of Federal
Regulations, as set forth below.
PART 223--[AMENDED]
1. The authority citation for part 223 continues to read as
follows:
Authority: 16 U.S.C. 1531-1543; subpart B, Sec. 223.201-202
also issued under 16 U.S.C. 1361 et seq.; 16 U.S.C. 5503(d) for
Sec. 223.206(d)(9).
223.211-223.300 [Reserved]
2. Add reserved Sec. Sec. 223.211 through 223.300.
3. Add part 223.301 to read as follows:
Sec. 223.301 Special rules--marine and anadromous fishes.
(a) Middle Columbia River steelhead (Oncorhynchus mykiss).
(1) The Middle Columbia River steelhead populations identified in
paragraph (a)(4) of this section are nonessential, experimental
populations.
(2) Take of this species that is allowed in the nonessential,
experimental population area. (i) Taking of Middle Columbia River
steelhead that is otherwise prohibited by paragraph (a)(3) of this
section and 50 CFR 223.203(a) is allowed within the nonessential,
experimental population geographic area, provided that the taking is
unintentional, not due to negligent conduct, and incidental to, and not
the purpose of, the carrying out of an otherwise lawful activity.
Examples of otherwise lawful activities include recreation,
agriculture, forestry, municipal usage, and other, similar activities,
which are carried out in accordance with Federal, State, and local laws
and regulations.
(ii) Any person with a valid permit issued by NMFS and a valid
permit issued by the Oregon Department of Fish and Wildlife may take
steelhead in the nonessential, experimental population area for
educational purposes, scientific purposes, and the enhancement of
propagation or survival of the species, zoological exhibition, and
other conservation purposes consistent with the ESA.
(3) Take of this species that is not allowed in the nonessential,
experimental population area. (i) Except as expressly allowed in
paragraph (a)(2) of this section, the taking of Middle Columbia River
steelhead is prohibited within the nonessential, experimental
population geographic area, as provided in 50 CFR 223.203(a).
(ii) No person shall possess, sell, deliver, carry, transport,
ship, import, or export, by any means whatsoever, Middle Columbia River
steelhead taken in violation of this paragraph (a)(3)(ii) and 50 CFR
223.203(a).
(4) All reintroduction sites are within the probable historical
range of Middle Columbia River steelhead and are as follows:
(i) Middle Columbia River Steelhead. Upper Deschutes River basin
upstream of Round Butte Dam, including tributaries Whychus Creek,
Crooked River and Metolius River. More specifically, the Deschutes
River from Big Falls (river mile 132) downstream to Round Butte Dam;
the Whychus Creek subbasin; the Metolius River subbasin; and the
Crooked River subbasin from Bowman Dam downstream (including the Ochoco
and McKay Creek watersheds) to its point of confluence with the
Deschutes River.
(ii) Round Butte Dam is the downstream terminus of this
nonessential experimental population. The powerhouse intakes are fully
screened, so except for rare spill events due to high flows, neither
adult nor juvenile fish can volitionally leave the nonessential
experimental population area, effectively isolating them from the
nonexperimental population below the Pelton Round Butte Hydroelectric
Project. All juvenile steelhead emigrating from the nonessential
experimental population area are collected at Round Butte Dam and given
a unique mark before being transported to the lower Deschutes River for
release. Once released below the Round Butte Dam, these fish will be
outside the nonessential experimental population area and thus
considered part of the nonexperimental population. Only returning adult
steelhead that originated from the nonessential experimental population
area (identified by a unique mark) will be released in the nonessential
experimental population area.
(5) Review and evaluation of effectiveness of nonessential
experimental population designation. As a requirement under its Federal
license to operate the Pelton Round Butte Hydroelectric Project,
Portland General Electric Company and the Confederated Tribes of the
Warm Springs Reservation of Oregon will conduct monitoring over the 50-
year term of the license. This monitoring will include collecting
information on the reintroduction program that NMFS will use in
evaluating the effectiveness of the
[[Page 28725]]
nonessential experimental population designation.
(6) Time frame for NEP designation. After three successive
generations of adult steelhead have passed upstream above Round Butte
Dam, this nonessential, experimental population designation will no
longer be in effect. The time frame for three generations (12 years)
will begin the first year adult fish from the experimental population
are released above Round Butte Dam. This release will occur according
to the criteria provided in the steelhead and spring Chinook
Reintroduction Plan (ODFW and CTWSRO, 2008).
(b) [Reserved]
[FR Doc. 2011-12236 Filed 5-17-11; 8:45 am]
BILLING CODE 3510-22-P